SA Incorrect boundary fence and encroachment

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Atticus

Well-Known Member
6 February 2019
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Purchased a property (9.5 Acres) in SA 3 years ago. Form 1 & sales contract stated no known encroachments…. We were notified last September by our nieghbour that a survey shows an incorrect boundary with some structures encroaching & part of a 20-year-old well established orchard (we are the encroaching owners)

Apparently, neighbor has been aware of this since at least Aug 2014 (the date of the survey). Don’t know if it was raised with previous owners we purchased from, & they therefore have mislead us on the form 1 but that’s not the issue at this point.

Although communication from them is scant, he says he wants to settle amicably. We have refused a request to remove encroachments at this point but have said that we wish to have something formalized to put the issue to bed & suggested the easiest, least costly option for all that won’t involve shifting or building new fences is to formalise the boundary where the fence currently is. We haven’t had a reply as yet but are expecting he won’t want to do that… We will therefore look to offer compensation at the unimproved capital value of the small part of the encroachment that we actually want to retain.

He has had a surveyor place pegs marking the correct boundary yesterday (our side of fence) I know surveyors can lawfully enter any property with or without permission to carry out survey work, & the pegs may help us get a square meter-age of the area we want to retain anyway.

My question for now is, in this scenario, can he unilaterally, lawfully erect a fence on the surveyed boundary up to the encroaching structures? …. If he begins fencing work, what can be done about it, apart from filing for the matter to be dealt with under the encroachments act? ..... We were hoping to avoid court & would only file as a last resort.

Any other strategy, thoughts welcome
 

Rod

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27 May 2014
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Talk to a SA lawyer about adverse possession.
 

Atticus

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6 February 2019
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Thanks for taking the time to read & respond @Rod appreciate it.

Only received basic legal advice at this stage, but it seems that is not an option that is going to work in SA unfortunately..

Will be getting more targeted legal advice when I hear back from the neighbour & get a better idea of what direction this is likley to go .... Will ask about the possibility of adverse possession with them.
 

Rod

Lawyer
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27 May 2014
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I understand adverse possession in SA is harder to obtain, but I don't know the details.

You may have an action against the previous owner, but again being in SA I'm not much help :(
 

Atticus

Well-Known Member
6 February 2019
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You may have an action against the previous owner
Yes ... When the dust has settled on this, depending on the outcome & what it has cost us, we will be looking to gather evidence that the former owners were aware of the encroachment & that we were provided with an incorrect Form 1